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Don’t Let the U.S. Pressure Canada into Repeating The Same Mistakes

In countries across the world, content copyright industries have been lobbying for laws that would break the Internet in the name of copyright enforcement. Such regulations could terminate user access to the Internet on an allegation of copyright infringement, enact website blocking powers that would make parts of the global Internet disappear from view, and impose digital locks laws that stifle online innovation and restrict the ability to use lawfully acquired digital content. Canada is the latest target. With Canada’s Copyright Modernization Act (Bill C-11) returning to committee in the Canadian Parliament, now is the time for Canadian netizens to take action to protect the free and open Internet by signing the petition jointly supported by OpenMedia.ca and the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC).

Misleadingly called the “Canadian SOPA” in many online circles, this most recent iteration of the bill in fact contains positive provisions that protect consumer rights, place limits on penalties for less serious infringements, and include a more balanced approach to Internet intermediary liability. However, U.S. content industry lobbyists are reportedly pushing for SOPA-like changes to the bill, which would be dangerous for online free speech and innovation. These would include new powers to force intermediaries to block websites and increased liability for online intermediaries such as Google. Even without the SOPA-like amendments, there is much cause for concern in C-11. The major problem lies in its digital locks provisions, which would undermine the other more positive aspects of the bill by strengthening the power of rightsholders to limit user rights over content.

Digital locks, (sometimes called Digital Rights Management [DRM], or technological protection measures [TPMs]), are measures added to copyrighted products to restrict copying and other uses of works and to control who can access the work. These include the Content Scramble System on DVDs, copy protection on CDs and some digital music downloads, and digital controls on e-books, videogames and software. Some countries’ laws prohibit the breaking or bypassing of these digital locks, and may also restrict or ban the creation and distribution of circumvention tools, devices and services that would be needed to circumvent the TPMs to make lawful uses of technologically protected copyrighted works.

WIPO’s 1996 Copyright Treaty and the Performances and PhotogramsTreaty require signatories to provide “adequate legal protection and effective legal remedies against the circumvention of effective technological measures” used to protect copyright and related rights in works. While Canada has not yet ratified these treaties and is not presently required to implement these obligations, it would be bound to do so under terms of the Anti-Counterfeiting Trade Agreement (ACTA). It has however, been looking at ways to do so that protect citizens’ rights of free expression and innovation.

The WIPO treaties leave much discretion on how to implement these obligations to member countries. The U.S. content lobby, however, continues to pressure countries around the world to implement the same type of digital locks provisions contained in the Digital Millennium Copyright Act (DMCA). This is despite the fact that US government officials have acknowledged the DMCA goes beyond what was required to comply with the treaties, and even while other countries have chosen different approaches to implementation. Over the years, Canada has tried to implement the TPM obligations differently from the U.S. through successive copyright reform bills (C-60, C-61, C-32, and now C-11) but U.S. copyright holders have not been satisfied with anything short of the DMCA-style implementation. As a result, the U.S. Trade Representative (USTR) has listed Canada, along with other noncompliant nations on the Priority Watch List in the USTR’s last three annual Special 301 reports, a process that could1 open the door to trade sanctions.

Tens of thousands of Canadians and dozens of interests groups have come out against any bill that would put such overbroad controls on the use of content. Only the content industries, many of which are U.S.-based, benefit from these laws. As we will outline in a separate post, digital circumvention provisions affect everyone. When content industry lobbyists continue to try and export these harmful policies and shove them down the throats of governments internationally, it is crucial for concerned citizens to be vocal in their opposition to such overreaching legislative proposals.

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If you live in Canada or are a Canadian citizen, you can take the following action: